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Sexual Orientation and the Paradox of Heightened Scrutiny

In Lawrence v. Texas, the Supreme Court both decriminalized consensual homosexual relations between adults, and, simultaneously and paradoxically, authorized a regime of heightened regulation of homosexuality. Decriminalization is not deregulation, however. Rather, it is one stage in a regulatory process, one which is likely, in Michel Foucault's words, to produce even more institutional incitement to speak about sexuality, and to do so more and more; a determination on the part of agencies of power to hear it spoken about, and to cause it to speak through explicit articulation and endlessly accumulated detail. Lawrence did not end state involvement with sexuality.

Future legal disputes are likely to center on the extent to which the indirect mechanisms of fields such as family and employment law will supplant criminal law in the machinery of state regulation of homosexuality. The impact of Lawrence is to deprive the state of easy invocations of morals or tradition to justify regulation. Courts will be forced to engage in more particularized assessments of whether there is a legitimate state interest justifying classifications based on sexual orientation: to hear homosexuality spoken about and to cause it to speak. Whatever standard of review is used, the inquiries into the reasonableness of differentiating based on sexual orientation will become more detailed and contextual. The paradox of this new form of heightened scrutiny is that such examinations will constitute even more intrusion by the state than occurred under the old criminal law regime, a development which is the seeming antithesis of the liberty principle of Lawrence.